The Divine Right of Barack Obama

The president who began as a champion of the legislature’s prerogative to declare war has morphed into Napoleon.

Asked earlier today how long he expected the bombing of Syria to last, Lieutenant General William C. Mayville Jr. advised reporters to think “in terms of years.” “Last night’s strikes,” Mayville confirmed, “were only the beginning.” A mile or so away, on the White House lawn, Barack Obama struck a similarly defiant note. “We’re going to do what is necessary to take the fight to this terrorist group,” the president explained, before assuring those present that the United States was but one part of a global alliance that stood “shoulder to shoulder . . . on behalf of our common security.” “The strength of this coalition,” Obama added, “makes clear to the world that this is not just America’s fight alone.” This much, at least, was true. Among the nations that have signed on to the attacks are Bahrain, Qatar, Saudi Arabia, Jordan, and the United Arab Emirates — all vital accomplices in the winning of hearts and minds. And yet, for all the cosmopolitanism, one crucial ally was conspicuously missing from the roster of the willing: the Congress of the United States.

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Since he ordered military action in Libya in 2011, President Obama has argued as a matter of routine that Article II of the U.S. Constitution confers such considerable power upon the commander-in-chief that, in most instances at least, Congress’s role in foreign affairs is limited to that of advice bureau. The political ironies of this development are sufficiently rich to stand without much comment. (Imagine, if you will, trying to explain to an average voter in 2008 that by his second term the Democratic candidate for president would have adopted wholesale an interpretation of the Constitution that was championed by the likes of George W. Bush, Dick Cheney, and John Yoo.) Less obvious, however, is what this means for America and her future. The bottom line: It’s not good.

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In the course of illustrating why we do not accord presidents unlimited power on the world stage, Obama’s critics have made much of his apparent hypocrisy, charging that a man who once flatly rejected the notion that the White House may do pretty much as it pleases has, while in office, morphed into Napoleon. This does seem to be the case. American chief executives, Obama told the Boston Globe in a 2007 interview, do not enjoy “power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” “In instances of self-defense,” he continued, “the president would be within his constitutional authority to act before advising Congress or seeking its consent.” These days, such caution is a distant memory, the White House tersely informing congressional leaders last week that while the president already possessed the “authority he needs to take action” against the Islamic State, he hoped that the legislature would come along anyway — not, of course, to confer legality upon any military action, but because he believed that the “nation is stronger and our efforts more effective when the president and Congress work together.”

Men in all walks of life change their minds from time to time, and they are often left better off for the shift. But there is something rather slippery about the manner in which this president has managed to transpose himself from a champion of the legislature’s prerogative to an uncompromising advocate for the divine right of kings. At no point have we heard a renunciation of his past position; nor, for that matter, has an explanation of his evolution been forthcoming. Instead, the president has engaged in what, ultimately, is a semantic game, holding theoretically to the “self defense” exception of which he spoke so passionately in 2007, but construing it so broadly as to render it operationally meaningless. The effect of this has been a volte-face, for if, in practice, “self-defense” can be held to justify each and every form of unilateral preemption, there is nothing that a president is not able to do without Congress. Article I, Section 8 of the Constitution of the United States explicitly reserves to the legislative branch the power “to declare war” — a reservation that the document’s primary author, James Madison, considered to be of utmost importance. “In no part of the constitution,” Madison explained in a 1793 letter, “is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department.” Nowhere in the missive, it must be noted, did Madison outline an exception for those executives that display a talent for parsing language, and nor did he include a caveat that this rule was to be considered inoperative should the president elect to play down the language of “war” or to refuse to accept that an armed encounter met the threshold. As George Will noted trenchantly last week, “The Constitution’s text, illuminated by the ratification debates, surely does not empower presidents to wage wars, preventive as well as preemptive, against any nation or other entity whenever he thinks doing so might enhance national security.” Is this principle to be dissolved by linguistic sleight of hand?

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If so, the consequences will be deleterious, for if Obama’s malleable criterion is to be our standard, future presidents will be permitted to act internationally at any point and for any reason without the need for the consent of Congress. This, suffice it to say, has not been how things were done for most of the nation’s history. Why, one has to wonder, if “self-defense” is our all-encompassing arbiter, did President Roosevelt bother to go to Congress after the Japanese attacked Pearl Harbor in 1941? Why, too, given that American ships were routinely sunk by German submarines, did Woodrow Wilson ask for a declaration of war in 1917? And why, one might ask, did George W. Bush, whose supposedly reckless behavior paved the way for Obama’s rapid ascent, ask for authorization before the invasions of Afghanistan and Iraq?

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Those hoping for satisfying and consistent answers to these questions will presumably be confounded by the White House’s caprice. Last week, the executive branch considered it necessary to ask for congressional approval before it set about arming the Syrian rebels; this week, the same people are arguing that it does not need approval to send fighter jets to drop bombs. It is standard for those who ask why to be told that the rules in this area are complex. But if we are dealing here with a legal grey area — as all advocates of carte blanche power like to tell us we are — it seems peculiar that the president would consider that a minor arms transfer requires justification but that the launching of ordnance in anger does not. Indeed, if there are any lingering questions whatsoever, prudence should surely dictate that we err on the safe side — especially given that Obama’s own Department of Defense is conceding that the United States will likely be involved in Syria for the long haul. If, as they were instructed to this morning, journalists are expected to conceptualize this battle “in terms of years,” should Washington, D.C., not too? Barack Obama will be out of office in just over two years. Then what?

The truth of this matter, as has so often been the case with this administration, is that the law is playing second-fiddle to cold-blooded political expedience. Simply put, President Obama calculated that he would be able to persuade Congress to acquiesce to one measure but not to the other — or, at the very least, that permitting the legislature to weigh in on the latter question would create political problems that his beleaguered party could at present do without. And so, confined by little more than the scope of his ambition, he invented a new set of rules for the day, making it clear to one and all that if getting his way requires him to adopt the legal theories that he rejected so vehemently just six years ago, then so be it; that if achieving his ends requires further entrenching precedents that he was sent into office to smash, then so be it; that if his team must apply to Syria laws regarding Iraq, and to the Islamic State laws that relate to al-Qaeda, then so be it; and that, internationally as well as at home, if Congress insists upon maintaining a mind of its own, then it will just have to be bypassed, too.

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